Are college athletes "employees"? NLRB General Counsel Richard Griffin sent out a memo [Memo text] on January 31 expressing the opinion that "scholarship football players at NCAA Division I Football Bowl Subdivision (“FBS”) private colleges and universities are employees under the [National Labor Relations Act], and therefore are entitled to the protections of Section 7 of the Act."

In Northwestern University, 362 NLRB No. 167 (August 17, 2015), the Board declined to exercise jurisdiction to certify the union’s proposed bargaining unit of scholarship football players. However, the Board specifically did not decide whether the players were statutory "employees." The General Counsel is convinced that they are.

In GC Griffin's words:

Thus, for instance, scholarship football players should be protected by Section 7 when they act concertedly to speak out about aspects of their terms and conditions of employment. This includes, for example, any actions to: advocate for greater protections against concussive head trauma and unsafe practice methods, reform NCAA rules so that football players can share in the profit derived from their talents, or self-organize, regardless of whether the Board ultimately certifies the bargaining unit.

Two days later, Rep. Virginia Foxx (R-NC), chairwoman of the House Committee on Education and the Workforce, and Rep. Tim Walberg (R-MI), chairman of the Subcommittee on Health, Employment, Labor, and Pensions, called on Griffin to "abandon his partisan agenda or step down immediately."

The Congressmembers issued a joint statement:

Last November, the American people demanded real change from Washington. They rejected the failed status quo that puts powerful special interests before the best interests of working families and small businesses. Richard Griffin is refusing to accept the lessons of the last election.

This partisan memorandum puts the interests of union leaders over America’s students, and it has the potential to create significant confusion at college campuses across the nation. It’s an affront to hardworking Americans for Griffin to double down on his extreme, Big Labor agenda, especially at a time when a new president is entitled to move the NLRB in a new direction.

Griffin should respect the will of the American people and rescind this memorandum immediately. If he is unwilling to set aside his extreme and partisan agenda, then he should step aside as general counsel.

Of course the handwriting is on the wall. GC Griffin's term will expire in November, and the new GC will reverse course. Whatever the current Board may do, please do not expect the soon-to-be-revealed Republican-dominated Board to adopt Griffin's position.